829 F.

2d 1280

POTOMAC VALVE & FITTING INC.; Raymond C.

McGarvey,
Plaintiffs-Appellants,
v.
CRAWFORD FITTING COMPANY; Dibert Valve & Fitting
Company,
Inc., Defendants-Appellees.
No. 86-2666.

United States Court of Appeals,

Fourth Circuit.
Argued May 6, 1987.
Decided Sept. 24, 1987.

Stephen A. Horvath, Alexandria, Va., for plaintiffs-appellants.

Rodney F. Page, Washington, D.C., and Gary B. Mims, Fairfax, Va., for
defendants-appellees.
Before WINTER, Chief Judge, MURNAGHAN, Circuit Judge, and
WISDOM, United States Senior Circuit Judge for the Fifth Circuit sitting
by designation.
WISDOM, Senior Circuit Judge:

This is a diversity suit for damages based upon theories of defamation, civil
conspiracy, and violation of Virginia's "insulting words" statute. The district
court entered summary judgment for the defendants, and the plaintiffs brought
this appeal. Because we find that the principal statement at issue was a
constitutionally protected expression of opinion, we affirm.

I.
2

The plaintiffs are Potomac Valve & Fitting Inc. (Potomac Valve) and its
president and owner, Raymond McGarvey. The plaintiffs distribute "Bi-lok"

brand tube fittings in Maryland and Virginia. The defendants are the Crawford
Fitting Company (Crawford) and the Dibert Valve & Fitting Company (Dibert
Valve). Crawford manufactures "Swagelok" brand tube fittings and Dibert
Valve distributes Swagelok fittings in Virginia. Bi-lok and Swagelok are direct
competitors in the Virginia tube fitting market.
3

In January 1985, Potomac Valve commissioned the Newport News Industrial

Corporation (Newport News) to conduct a series of tests in response to
customer concerns about whether the Bi-lok fitting was freely interchangeable
with the older and more established Swagelok fitting. Mr. McGarvey, himself a
former Swagelok distributor, instructed Newport News to use the "Swagelok
General Test Program"--with some modifications. The parties disagree sharply
about the importance of these modifications.1

On June 24, 1985, Newport News completed the tests and prepared a twentynine page report of its findings. Potomac Valve summarized this report in three
pages and added a fourth page as a synopsis and cover sheet. The synopsis
concluded that Bi-lok, Swagelok, and two lots of intermixed fittings all passed
the various tests "with no significant differences". The synopsis and the test
results were sent out to the customers and potential customers of Potomac
Valve.

All this activity inevitably came to the attention of Samuel Dibert, the President
of Dibert Valve. Dibert sent a copy of the synopsis to Crawford headquarters in
Ohio. He then attempted to find out about the testing procedures used by
Newport News, but officials at Newport News told him that this information
was "privileged".

On August 26, 1985, Dibert wrote to one of his customers, the Badische Corp.
of Williamsburg, Virginia, and declared that "[t]he test parameters for the
recent test by Newport News Shipbuilding were set up by Bi-lok to give the
best possible chance of success".2 Despite this letter, Badische eventually
shifted its account from Swagelok to Bi-lok.3

Shortly after Dibert mailed the test synopsis to Crawford he telephoned Mr.
William Wilson, then Manager of Marketing and Technical Services at
Crawford, and the following conversation ensued:

8 called me and said, "Did you get it?," and I said, "Yes," and something to the
He
effect of, "Are you going to do anything about it?," and I said, "I don't know, I've got
more important things to do right now."

Wilson deposition at 37. On October 3, 1985, Crawford finally responded to

the Bi-lok test with a two paragraph "article" in the Crawford Distributor
Information Exchange.4 The text of this critique was written by Wilson and sent
to Crawford distributors across the country. Although the Distributor
Information Exchange is marked "Personal and Confidential", Wilson testified
in his deposition that he expected Crawford distributors to use it to brief their
salesmen, and that ultimately the salesmen would convey the gist of what he
had written to any customer who had questions about the test. In the last line of
the article, Wilson concludes that "[t]his was a (purposely) very poor test
designed to snow the customer".

10

According to the plaintiffs, Swagelok salesmen began to tell their customers

that the Bi-lok test had been rigged. Although they quickly mailed out a two
page reply to these accusations, the plaintiffs maintain that as a result of
Crawford's conduct they have lost "substantial" business, as well as a
distributorship for Cardinal Tubing.

11

In April 1986 the plaintiffs sued Crawford and Dibert Valve in the Eastern
District of Virginia. 5 The plaintiffs allege that Crawford and Dibert Valve
conspired to injure them in their reputation; they also maintain that both the
August 26 letter to Badische and the Crawford Distributor Information
Exchange constitute defamation and violate the Virginia statute that prohibits
insulting words which "tend to violence and breach of the peace".

12

After discovery, the district court granted the defendants' motion for summary
judgment on all counts. The court found that the Distributor Information
Exchange, even if defamatory, was privileged as a communication between
parties sharing a common business interest.6 In the alternative, the district court
ruled that the concluding sentence of the Distributor Information Exchange was
a constitutionally-protected expression of opinion.7 As the district court noted,
either one of these alternative grounds for dismissing the defamation claim
would apply to the Virginia "insulting words" statute as well. Finally, the court
found no evidence of a conspiracy between Crawford and Dibert Valve. On
appeal, the plaintiffs challenge the district court's judgment on all three counts.

II.
13

A. We begin with the civil conspiracy count. Virginia law provides treble
damages for anyone who is injured in his "reputation, trade, business or
profession" by the concerted and malicious acts of two or more other persons.8
Although the statute refers to "any means whatever", Virginia courts have
consistently ruled that to recover damages for conspiracy a plaintiff must show

that the defendants have combined "to accomplish some criminal or unlawful
purpose, or to accomplish some purpose, not in itself criminal or unlawful, by
criminal or unlawful means". Hechler Chevrolet, Inc. v. General Motors, 230
Va. 396, 337 S.E.2d 744, 748 (1985). Thus, summary judgment against the
plaintiffs on the conspiracy count must be affirmed unless the plaintiffs can
point to specific facts showing that Crawford and Dibert Valve combined to use
unlawful tactics to counteract the marketing effect of the Bi-lok test. See
Celotex Corp. v. Catrett, 477 U.S. 317, ---, 106 S.Ct. 2548, 2553, 91 L.Ed.2d
265, 274 (1986).
14

We find no evidence that the defendants combined to use unlawful means to

blacken the plaintiffs' reputation. It is true that Dibert spoke to Wilson over the
telephone about the Bi-lok test. He may even have encouraged Wilson to
prepare a response. But the only evidence in the record concerning this
conversation is that it ended on an inconclusive note: Wilson told Dibert that he
had "more important things to do". Moreover, as we hold below, the response
that Crawford finally issued was not in fact unlawful.

15

There is no genuine issue in this case as to the existence of a civil conspiracy,

even when the record is viewed in the light most favorable to the plaintiffs. Cf.
United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d
176 (1962). We therefore affirm the entry of summary judgment against the
plaintiffs on the conspiracy count.

16

B. We now turn briefly to the plaintiffs' "insulting words" claim. Virginia Code
Sec. 8.01-45 creates a private cause of action against the use of words "which
from their usual construction and common acceptance are construed as insults
and tend to violence and breach of the peace".

17

Although application of this provision is no longer confined to its original

purpose of preventing duels, it has been interpreted by Virginia courts to be
virtually co-extensive with the common law action for defamation.9 W.T. Grant
Co. v. Owens, 149 Va. 906, 141 S.E. 860, 863 (1928); see also Carwile v.
Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d 588, 591 (1954); Mills v.
Kingsport Times-News, 475 F.Supp. 1005, 1007 (W.D.Va.1979). For this
reason we conclude that any constitutional limitations that apply to the
plaintiffs' defamation action must necessarily apply to their "insulting words"
claim as well. Put differently, we agree with the district court that in this case
the defamation claim and the Sec. 8.01-45 claim must ineluctably "rise or fall
together".

18

C. Finally, then, we address the plaintiffs' defamation claim. We are unable to

18

C. Finally, then, we address the plaintiffs' defamation claim. We are unable to

accept the district court's first ruling that the record warrants summary
judgment on the basis of the "common interest" privilege. William Wilson, the
author of the Distributor Information Exchange, testified in his deposition that
he fully expected the substance of his article to be passed along from the
distributors to the salesmen--and eventually to the customers themselves. The
plaintiffs presented some evidence that Swagelok salesmen were spreading the
word that the Bi-lok test had been "purposely constructed to snow the
customer". Letter of Don Chamberlain dated 10/29/85. If accepted by the court
at trial, this evidence would severely undermine the "common interest"
privilege. See Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 334
S.E.2d 846, 853-54 (1985).10 Because we hold that the privilege defense does
not justify summary judgment in this case, we need not address the plaintiffs'
contention that the defendants acted with malice.

19

We find, however, that the key statement in this case--that "[t]his was a
(purposely) very poor test designed to snow the customer"--is, when read in
proper context, a constitutionally protected expression of opinion.11 Because the
First Amendment line between fact and opinion is sometimes elusive, and
because the issue has not yet been addressed in this circuit, we pause here to
provide our understanding of the distinction before applying it to the facts of
this case.12

20

The proposition that the First Amendment protects opinions from liability
under state defamation law has often been traced to the following dictum in
Gertz v. Welch:

21 begin with the common ground. Under the First Amendment there is no such
We
thing as a false idea. However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the competition of other
ideas. But there is no constitutional value in false statements of fact.
22

418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) (footnote
omitted).13 From these words, lower courts and commentators have gleaned at
least three distinct rationales for giving special treatment to statements of
opinion. First, an idea that cannot be "false" generally cannot be proved to be
"true" either. If actionable, then, statements of opinion would frequently lose
the constitutionally-based protection of the truth defense.14 Second, as a
corollary to the Court's reliance upon "the competition of other ideas", it is
widely recognized that an opinion carries less authority than a fact, and is
therefore inherently less likely to threaten the interests and values that are
safeguarded by laws against defamation.15 Unpopular opinions, in the words of
the Court, only "seem" to be pernicious.16 Finally, the last sentence in the

passage quoted from Gertz reminds us that most forms of speech have an
affirmative constitutional value.17 Ideas and opinions bear the personal imprint
of the men and women who hold them. It is therefore particularly important to
protect their unfettered expression, and a rule that chills statements of fact may
be acceptable where a rule chilling opinions would not be.18
23

The constitutional distinction between fact and opinion is now firmly

established in the case law of the circuits.19 This Court recognized and applied
it in National Foundation for Cancer Research v. Council of Better Business
Bureaus, Inc., ("NFCR "), 705 F.2d 98, 100-01 (4th Cir.), cert. denied, 464 U.S.
830, 104 S.Ct. 108, 78 L.Ed.2d 110 (1983). We held that a statement that the
plaintiff did not spend "a reasonable percentage of total income on program
services" was an opinion, and therefore not actionable. Id. at 101. Although this
determination is plainly correct, the NFCR opinion does not attempt to provide
guidance for drawing the line in closer cases.20

24

Perhaps the most comprehensive attempt to define the indicia of an "opinion"

can be found in Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (en banc). The
Ollman case arose from a newspaper column that accused the plaintiff of being
a Marxist pamphleteer and an activist rather than a serious scholar. Although
the case engendered seven separate opinions, the opinion by Judge Starr for the
Court held that the column was a constitutionally protected expression of
opinion.

25

In reaching this conclusion, the Ollman court was admittedly sailing through
the "largely uncharted seas ... left in Gertz 's wake". Id. at 977. Recognizing
that it would be impossible to draw a bright line between fact and opinion, the
court proposed a four-factor analysis. Id. at 979-84. To identify an opinion, a
trial judge should (1) consider the author or speaker's choice of words;21 (2)
decide whether the challenged statement is "capable of being objectively
characterized as true or false";22 (3) examine the context of the challenged
statement within the writing or speech as a whole;23 and (4) consider "the
broader social context into which the statement fits".24 We agree that this
thoughtfully elaborated list includes all the relevant factors. Unfortunately,
though, the Ollman test and other tests like it leave considerable doubt as to the
proper outcome when all of these factors are not in agreement.25

26

We view the second Ollman factor--the verifiability of the statement in

question--as a minimum threshold issue. If the defendant's words cannot be
described as either true or false, they are not actionable, even if they are
cautiously phrased and published in a learned treatise. The statement in NFCR
that the plaintiff failed to invest a "reasonable percentage" of its income in

actual cancer research was inherently impossible to prove or disprove. As such,

it was properly protected by the First Amendment, regardless of how it might
have fared under the full Ollman analysis.
27

Even when a statement is subject to verification, however, it may still be

protected if it can best be understood from its language and context to represent
the personal view of the author or speaker who made it.26 Thus we reject the
suggestion, advanced by the plaintiffs in this case, that any "question of fact"
which can be decided by a jury can be actionable as defamation. Such a test
ignores the underlying purposes of the fact/opinion distinction, and would lead
to results that could not be reconciled with the developing case law in other
circuits.27

28

We hold that a verifiable statement, a statement that has failed the second
Ollman factor, nevertheless qualifies as an "opinion" if it is clear from any of
the three remaining Ollman factors, individually or in conjunction, that a
reasonable reader or listener would recognize its weakly substantiated or
subjective character--and discount it accordingly. As Thomas Jefferson
observed in his first Inaugural Address, in a passage quoted by Justice Powell
in Gertz, error of opinion need not and ought not be corrected by the courts
"where reason is left free to combat it".28

29

Applying this analysis to the case before us, we begin by asking whether the
final sentence in the Distributor Information Exchange is capable of truth or
falsity. The plaintiffs argue that the test was either "purposely ... designed to
snow the customer" or it wasn't.29 We agree. The truth or falsity of the
statement does not depend upon subjective values or indefinite terms. Cf. Avins
v. White, 627 F.2d 637, 642-43 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct.
398, 66 L.Ed.2d 244 (1980) (statement that "academic ennui" pervaded
plaintiff's law school not actionable).

30

In oral argument before the district court, the defendants suggested that
statements of intention or motive are inherently unverifiable. According to the
defendants, "many psychiatrists" would maintain that "we often even don't
know our own intentions". We emphatically reject this approach. The question
of verifiability is ultimately relevant only insofar as it preserves the truth
defense and protects statements which the ordinary reader or listener would
recognize as incapable of positive proof. These purposes are not served by
considering psychological and epistemological doubts that would ultimately
threaten the entire concept of defamation. We hold that the final sentence of the
Distributor Information Exchange is capable of being proved true or false.30

31

We proceed, then, to the second step of the analysis. Here we consider the
language of the statement in question, the context of the statement within the
article as a whole, and the broader social context within which the statement
was made.31 The plaintiffs would have us find that the message of the
Distributor Information Exchange was that Mr. McGarvey acted with "specific
intent" to "mislead" his customers. We note, however, that the Distributor
Information Exchange does not use these precise, legalistic terms. Instead, Mr.
Wilson set the word "purposely" in parenthesis, as though it were an
afterthought, and used the colloquial verb "to snow". We do not doubt that "to
snow" has an ascertainable and pejorative meaning. Nevertheless, it lacks the
air of illegality which hangs about the words "mislead", "deceive", and
"defraud".32

32

The district court ruled that the statement was opinion based upon the next
factor, its context in the article as a whole.33 The plaintiffs prefer to discuss the
last sentence of the article in isolation. Standing alone, the statement that
McGarvey purposely designed the test to snow his customers might well
suggest that the author had special access to information that confirmed
McGarvey's bad faith.34 Read in context, however, it is clear that the statement
is merely Wilson's conclusion from the seven specific points he outlines in the
text of the article.

33

We note in particular the sentence: "It [the Bi-lok test report] all looks very
official until you read it in detail". This sentence puts the reader on notice that
the author is basing his discussion on nothing more than a close analysis of the
test results. The paragraph that begins with this sentence proceeds to list a
number of methodological shortcomings that are supposedly revealed by a
close reading of the test results, and ends with the conclusion that the test was
purposely designed "to snow the customer". We agree with the district court
that, when properly viewed in context, the statement in question readily appears
to be nothing more than the author's personal inference from the test results.
The premises are explicit, and the reader is by no means required to share Mr.
Wilson's conclusion.

34

Finally, we find that a reasonable reader would recognize that the contents of
the Crawford Distributor Information Exchange are likely to reflect the
professional interests of the Crawford Fitting Company. The plaintiffs point out
that the statement "was published in a distributor information exchange and not
in an opinion exchange" (original emphasis). Despite the label of the
publication, however, we are unable to agree with the suggestion that readers of
the bulletin--whether distributors or potential customers--would expect it to
contain a dispassionate and impartial assessment of the Bi-lok test.35 The world

of business is a world of conflict and competition. Businessmen recognize this,

and are usually able to discount the views of one competitor about the quality
of his rival's product, or the purity of his ethical character.36
35

In summary, we acknowledge that the defendants' statement is capable of being

proved or disproved, but we nevertheless hold that when viewed in context it is
clearly an opinion, and therefore protected by the First Amendment. For this
reason, we agree with the district court's disposition of both the "insulting
words" claim and the defamation count.

36

Accordingly, the judgment of the district court is AFFIRMED.

The defendants maintain that McGarvey improperly supplied Newport News

with the fittings to be tested. They also charge that only the strongest sizes and
shapes were tested, and that several important tests were omitted altogether.
The plaintiffs insist that the only deviations from the Swagelok General Test
Program were cost-saving measures that in no way affected the tests' validity.
Fortunately we need not pass judgment on these methodological problems to
decide the case before us

Newport News Shipbuilding is the parent of the Newport News Industrial Corp.
which actually conducted the tests

It is worth noting that the August 26 letter to Badische also included the
following statement:
We do not question the results of the test, but rather ask if it is appropriate or
prudent to use this test of limited service factors, under ideal conditions, to
support the claim that the Bi-lok fitting is equal in all respects to SWAGELOK.
In short, the main point of Dibert's letter to Badische was not to impugn the
tests themselves, but simply to question their value when set beside Swagelok's
"years of proven reliability" under actual operating conditions.

The Distributor Information Exchange, a newsletter sent to Crawford's 78

distributors, appears roughly once a month. It is produced by a word processor
and a photocopying machine. The "lead story" for October is reprinted here in
its entirety:
Bi-Lok "Independent" Test
Bi-Lok distributors are regularly handing out copies of Test Results from tests

performed (at Bi-Lok expense) at Newport News Shipbuilding & Dry Dock
Company in Newport News, Virginia.
These tests were commissioned and paid for by Ray McGarvey at Potomac V
& F Co. He also furnished all of the tube fittings (including the Swagelok
fittings).
It all sounds very official until you read it in detail:
1

Fittings were Bi-Lok and Swagelok, furnished by Potomac V & F. Question:

Why did Potomac furnish the Swagelok fittings? Leads to many more questions

Of the 48 assemblies tested, "47 of 48 assemblies showed favorable results".

Question: What happened to the 48th? Answer: It leaked

In helium leak test the column "VACUUM TO" is listed as greater than 1 X
1085cc 1sec helium. This is a leak rate, not a vacuum.

No forged shapes were used in the tests

The make-break test assembly was not used for burst tests as we always do in
our tests

Tensile tests merely said "increased load until union broke or tubing pulled out
of union." No figures given

Only one wall thickness of tubing was used for each size
This was a (purposely) very poor test designed to snow the customer.

The defendants filed separate answers. Dibert Valve simply denied liability.
Crawford, by contrast, brought a counterclaim for $3 million arising from a
press release that Potomac Valve issued at the time it filed its complaint. When
the district court granted the defendants' motion for summary judgment, the
counterclaim was voluntarily withdrawn. It is not now before us

The "common interest" privilege can be overcome only by proof of malice, and
the district court held that "there has been no showing here of ... malice"

The district court did not deal explicitly with the August 26, 1985 letter from
Dibert to Badische. It did find, however, that "the basic libelous document is
the distributor information exchange". We interpret this as a finding that the
Badische letter was simply not defamatory. Because we view the letter as an
effort to question the applicability of the tests, rather than the motives of

McGarvey and Potomac Valve, we agree. See note 3

8

Section 18.2-499 of the Virginia Code imposes criminal liability upon:

(a) Any two or more persons who shall combine, associate, agree, mutually
undertake or concert together for the purpose of willfully and maliciously
injuring another in his reputation, trade, business or profession by any means
whatever....
Civil liability and the right to treble damages and attorney's fees are established
in Sec. 18.2-500.

The only remaining exception to this near-perfect congruence is that Sec. 8.0145 reaches statements made only to the plaintiff, while defamation requires that
the actionable statement be communicated to some third party. Carwile, 82
S.E.2d at 591; The Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 720 n. 1,
cert. denied, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 643 (1985). In this
case, however, the distinction is irrelevant: the defendants' statements were
communicated to third parties

10

The district court appears to have been influenced by the fact that Crawford
labeled the Distributor Information Exchange "Personal and Confidential".
Ultimately, of course, it is the responsibility of the court to determine whether
the "common interest" privilege applies in a given case. Great Coastal Express,
334 S.E.2d at 853; Aylor v. Gibbs, 143 Va. 644, 648, 129 S.E. 696, 697 (1925).
Nevertheless, we reiterate that a summary judgment hearing is not the proper
forum for assessing the relative weight of conflicting evidence. Ross v.
Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985)

11

We have already ruled that the August 16, 1985 letter from Dibert to Badische
was not defamatory. See note 7. None of the other statements attributed to
Dibert constitutes defamation either. See Brief of Appellants at 13-14. We also
agree with the district court's ruling that only the last sentence of the Distributor
Information Exchange could possibly have defamed the plaintiffs. Indeed, the
plaintiffs do not dispute the accuracy of the seven observations leading up to
the final conclusion that the tests were "designed to snow the customer".
Rather, they contend that the bulk of the article is irrelevant, and that the last
sentence is a malicious non sequitur

12

Whether a statement constitutes fact or opinion is a question of law for the trial
court to decide. Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219,
224 (2d Cir.1985); Lewis v. Time, Inc., 710 F.2d 549, 553 (9th Cir.1983);
Rinsely v. Brandt, 700 F.2d 1304, 1309 (10th Cir.1983). Like all questions of
law, it is subject to de novo review on appeal

13

Before Gertz, statements of opinion were often protected by the qualified

common law privilege of "fair comment". See Restatement (Second) of Torts
Sec. 566 comment a (1977). The Supreme Court hinted as early as New York
Times v. Sullivan, 376 U.S. 254, 292 n. 30, 84 S.Ct. 710, 732 n. 30, 11 L.Ed.2d
686 (1964) that the "fair comment" rule might have a constitutional dimension
In Virginia, article 1, section 12 of the state constitution provides that "... any
citizen may freely speak, write, and publish his sentiments on all subjects,
being responsible for the abuse of that right ...". Although we base our decision
in this case on the federal right to free speech, we note that the Virginia
Supreme Court has recognized and applied the fact/opinion distinction under
article 1, section 12 of the Virginia Constitution as well. Chaves v. Johnson,
230 Va. 112, 335 S.E.2d 97, 101-02 (1985).

14

Cf. Ollman v. Evans, 750 F.2d 970, 981-82 (D.C.Cir.1984), cert. denied, 471
U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). The Supreme Court's
decision in Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215, 13
L.Ed.2d 125 (1964) established the rule that truth is always a defense when the
allegedly defamed party is a public official. In Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975), the
Court strengthened the constitutional footing of the truth defense. Nevertheless,
the question whether true statements may ever be actionable under state
defamation law apparently remains open. But see Louderback v. American
Broadcasting Companies, 741 F.2d 193, 195 (8th Cir.1984), cert. denied, 469
U.S. 1190, 105 S.Ct. 961, 83 L.Ed.2d 967 (1985); L. Tribe, American
Constitutional Law 635 n. 22 (1977)

15

Ollman, 750 F.2d at 979, 981. See also Restatement (Second) of Torts Sec. 566
comment c (the constitutional difference between fact and opinion "lies in the
effect upon the recipient of the communication")
In the pre-Gertz case of Greenbelt Cooperative Publishing Assn. v. Bressler,
398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) the Supreme Court ruled that
use of the word "blackmail" in connection with a developer's offer to sell land
for the construction of a new school only in return for the re-zoning of some
other property could not serve as the basis for a libel action:
It is simply impossible to believe that a reader who reached the word
"blackmail" in either article would not have understood exactly what was
meant: it was Bresler's public and wholly legal negotiating proposals that were
being criticized. No reader could have thought that ... the newspaper articles ...
were charging Bresler with the commission of a criminal offense.
Id. at 14, 90 S.Ct. at 1542. Greenbelt does not employ the fact/opinion

distinction explicitly, but it does stand for the proposition that rhetorical or
hyperbolic language is protected under the First Amendment because "even the
most careless reader" can recognize it and discount its significance. See also
Mr. Chow of New York, 759 F.2d at 229 (metaphors and hyperbole are entitled
to constitutional protection when "the average reader would understand the
statements involved to be opinion").
16

Gertz, 418 U.S. at 339, 94 S.Ct. at 3006. By stressing the comparative

harmlessness of statements of opinion we do not mean to denigrate the
importance of an individual's interest in his reputation. This interest has been
fairly described as part of "the essential dignity and worth of every human
being". Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597
(1966) (Stewart, J., concurring); see also Gertz, 418 U.S. at 341, 94 S.Ct. at
3007

17

See Bose Corp. v. Consumers Union, 466 U.S. 485, 503, 104 S.Ct. 1949, 1960,
80 L.Ed.2d 502 (1984) ("The First Amendment presupposes that the freedom to
speak one's mind is ... an aspect of individual liberty--and thus a good unto
itself ..."); see generally Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641,
648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring) ("Those who won our
independence believed that the final end of the State was to make men free to
develop their faculties.... They valued liberty both as an end and as a means.")

18

See, e.g., Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied,
434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977) ("Any risk that full and
vigorous exposition of opinion ... may be stifled must be given great weight")
One important aspect of the right to express one's opinion is protection of an
author's decision to "interject style" into his writing. Mr. Chow of New York,
759 F.2d at 229. As this circuit observed in the pre-Gertz case of Time, Inc. v.
Johnston, 448 F.2d 378, 384 (4th Cir.1971), "[t]o deny the press the right to use
hyperbole ... would condemn the press to an arid, desiccated recital of bare
facts".

19

See, e.g., Ollman v. Evans, 750 F.2d at 974 n. 6 ("a majority of federal circuit
courts ... have accepted the statement as controlling law")

20

The plaintiff in NFCR complained about further statements by the defendant

suggesting that the plaintiff's 1980 fund raising appeals had been "inaccurate
and misleading". Id. at 99. Depending upon their exact language and context,
these statements were arguably also opinions, a possibility the Court chose not
to address. Instead, the NFCR court relied upon the "public figure" status of the
plaintiff and the absence of actual malice to affirm the dismissal of defamation
claims based upon these additional statements. Id. at 101-02

21

Id. at 979-81. In other words, the district court must consider whether the
defamatory terms have precise meaning, see, e.g., Cianci v. New Times
Publishing Co., 639 F.2d 54, 63 (2d Cir.1980), or, on the contrary, whether
they are "loosely definable" and "variously interpretable", see, e.g., Buckley v.
Littell, 539 F.2d 882, 895 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct.
785, 50 L.Ed.2d 777 (1977). On a different plane, the trial court should decide
whether the language in question is objective in tone, or "exaggerated or
hyperbolic", see, e.g., Mr. Chow of New York, 759 F.2d at 228. Loosely
definable language may leave the defendant without a truth defense;
exaggerated language will be discounted by the listener or reader: these traits
suggest that a statement is constitutionally protected opinion. See generally
McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir.1987) (timeshare condominium
development described as a "scam"); Lauderback v. American Broadcasting
Companies, Inc., 741 F.2d 193 (8th Cir.1984) (insurance agent referred to as a
"crook"); Lewis v. Time, Inc., 710 F.2d 549 (9th Cir.1983) (lawyer said to be
one of the profession's "shadier practitioners"); Edwards v. National Audubon
Society, 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54
L.Ed.2d 498 (1977) (scientist called a "liar" for supposedly misusing Audubon
statistics)

22

Ollman, 750 F.2d at 981-82. See also Hotchner v. Castillo-Puche, 551 F.2d at
913; Restatement (Second) of Torts Sec. 566 comment a. Although it will
sometimes be difficult to decide whether a given statement is verifiable, the
inquiry must be pursued in the light of common sense. Perhaps in an effort to
avoid conflict among the various Ollman factors, a few courts have chosen to
"interpret" the defendant's statements before deciding whether they are
verifiable. We regard this as a dangerous enterprise. In Mr. Chow of New York,
for example, the court held that a restaurant reviewer's assertion that the sweet
and sour pork at the plaintiff's restaurant contained "more dough than meat"
really meant that "the pork was too doughy". Similarly, the statement that "[t]he
green peppers ... remained still frozen on the plate" really meant that "the
peppers were too cold". 759 F.2d at 229. Thus construed, each statement
became an unverifiable "matter of personal taste". We agree that the language
and context of the statements at issue in Mr. Chow of New York indicate that
they are opinions; to suggest that they are inherently unverifiable, however, is
to risk slipping into what Judge Friendly aptly referred to as "HumptyDumpty's use of language". Cianci v. New Times Publishing Co., 639 F.2d at
64

23

Ollman, 750 F.2d at 982-83. See also Restatement (Second) of Torts Sec. 566
comment b. The Ollman court correctly notes that the Supreme Court's
decision in Greenbelt Publishing serves as an example of "the power of context
to transform an ostensibly factual statement into one of opinion". Id. at 982. The

word "blackmail", taken out of context, might easily appear to refer to specific
criminal activity. Read as a whole, however, the article at issue in Greenbelt
Publishing provided the reader with enough background information to realize
that the term "blackmail" was only being used to criticize the plaintiff's
bargaining position. See note 15
24

Ollman, 750 F.2d at 983-84 ("[i]t is one thing to be assailed as a corrupt public
official by a soap box orator and quite another to be labelled corrupt in a
research monograph detailing the causes and cures of corruption in public
service"); see also Restatement (Second) of Torts Sec. 566 comment e (1977).
Authority for this factor is often drawn from Old Dominion Branch No. 496,
Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41
L.Ed.2d 745 (1974). In Letter Carriers, a union newsletter described the
plaintiffs as "scabs" and added that "a SCAB is a traitor to his God, his country,
his family and his class". Id. at 268, 94 S.Ct. at 2773. Although the case was
decided under federal labor law, rather than the First Amendment, the Supreme
Court relied upon Gertz for the proposition that opinions cannot serve as the
basis for libel claims. Id. at 284, 94 S.Ct. at 2781. The statement was an
opinion, the Court concluded, because "such exaggerated rhetoric [is]
commonplace in labor disputes". Id. at 286, 94 S.Ct. at 2782

25

In Mr. Chow of New York, see note 18, the Second Circuit consolidated the
four Ollman factors into three by combining the last two under the single
heading of "context". Because restaurant reviews are "the well recognized
home of opinion and comment", 759 F.2d at 227, the "context" factor cut in
favor of ruling that the entire review was opinion. Nevertheless, the court
distinguished criticism of the Peking Duck (fact) from criticism of the peppers
and the sweet and sour pork (opinion) on the basis of the defendant's choice of
language. Id. at 229. This implicitly suggests a rule that unless all of the Ollman
factors point toward "opinion", the statement in question is a "fact". We would
reject such a rule as unnecessarily rigid. See note 33

26

We agree that a test hinging exclusively on whether an average reader would

perceive the statement as an opinion, see, e.g., Mashburn v. Collin, 355 So.2d
879, 885 (La.1977), is inadequate. See Ollman, 750 F.2d at 979 n. 16.
Nevertheless, by adopting this formulation, the Mashburn court rightly focuses
on one of the main purposes of the fact/opinion distinction: to give immunity to
statements that are recognizable as opinions, and thus likely to be taken with a
grain of salt

27

Cf. Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir.) (en banc), cert.
denied, --- U.S. ----, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986) ("the term 'fact' need
not have the same meaning in every legal context. The meaning we give to it

should depend on the purposes of the law being applied")

28

The Complete Jefferson 385 (S. Padover ed. 1943), quoted in Gertz v. Welch,
418 U.S. at 340, n. 8, 94 S.Ct. at 3007 n. 8

29

The defendants' argument on this point is often clouded by their reluctance to

acknowledge that the Distributor Information Exchange criticizes the plaintiffs'
intentions. It is true, of course, that the statement "[t]his was a (purposely) very
poor test ..." also offers a judgment of the test itself. We agree with the
defendants that this second judgment is too loosely worded to be verifiable. The
plaintiffs' main concern, however, is the imputation of bad faith contained in
the words "purposely ... designed to snow the customer"

30

Counsel for the defendants have also argued that the statement is entirely true.
This argument addresses an issue we need not reach in this opinion. In holding
that the final sentence in the Distributor Information Exchange article is
capable of truth or falsity we have given no weight to Dibert and Crawford's
defense of its truth. Men have often argued for and against unprovable
assertions; we find no logical correlation between the existence of these
arguments and the provability of the underlying assertion. But cf. Kelly v.
Schmidberger, 806 F.2d 44, 48 (2d Cir.1986)

31

We discuss these three factors separately. Once the issue of verifiability has
been isolated as a threshold concern, however, we find nothing objectionable in
the "totality of the circumstances" approach advocated by Judge Bork. Ollman
v. Evans, 750 F.2d 970, 993 (Bork, J., concurring)

32

The exact language used in a statement will often carry great importance. See
e.g., Ollman v. Evans, 750 F.2d at 1000 n. 5 (Bork, J., concurring) ("Marxist"
distinguished from "Leninist" and "Communist-fronter"); Edwards v. National
Audubon Society, 556 F.2d at 121 ("liar" distinguished from "paid liar")

33

Although we base our affirmance upon the combined effect of the first, third,
and fourth Ollman factors, we note that there is authority to support the district
court's decision to rely upon a single factor. Edwards v. National Audubon
Society, 556 F.2d at 121. But cf. Janklow v. Newsweek, 788 F.2d at 1302

34

A "negative characterization" will be actionable if it is "coupled with a clear

but false implication that the author is privy to facts ... that are unknown to the
general reader". Hotchner v. Castillo-Puche, 551 F.2d at 913; see also
Lauderback v. American Broadcasting Companies, 741 F.2d at 195. In the
present case, there is no suggestion in the Distributor Information Exchange
that the author has access to facts that are not disclosed in the Bi-lok test
synopsis

35

Although only one number of the Distributor Information Exchange appears in

the record, we note that the other major "article" for October 1985 is devoted to
a discussion of why Crawford's "TFE Tape" is superior to other brands

36

The plaintiffs have based their case upon alleged injuries to their reputation
within the business community. Even if members of the general public
somehow learned of Crawford's low opinion of the Bi-lok test, it is difficult to
see how this knowledge could have damaged the plaintiffs. Thus the
"reasonable reader" we envision is endowed with the business sophistication of
a reasonable purchaser of pipe fittings